2018 Bittorrent Litigation Updates – Judge in D.C. RIPS Strike 3 Holdings, LLC. IMPORTANT BREAKING NEWS!!!
Big decision from a D.,C. Court this week involving Strike 3 Holdings LLC one of the current most prolific filers of federal court copyright lawsuits in the United States. Our boutique copyright infringement defense law firm defends in many cases brought by this company and their key intellectual property law firm Fox Rothschild. This case deals with their D.C. office (according to Online Pacer Court Records):
FOX ROTHSCHILD LLP 1030 15th Street, NW Suite 380 East Washington, DC 20005
The case citation is:
STRIKE 3 HOLDINGS, LLC v. DOE Royce C. Lamberth, presiding Date filed: 06/15/2018 Date terminated: 11/16/2018 Date of last filing: 11/16/2018
MOTION FOR LEAVE TO SERVE A THIRD PARTY SUBPOENA PRIOR TO A RULE 26(f) CONFERENCE
Pursuant to the Federal Rules Civil Procedure 26(d)(1), and upon the attached:
(1) Memorandum of Law in support of this motion;
(2) Declaration of Greg Lansky in support of this motion;
(3) Declaration of Tobias Fieser in support of this motion;
(4) Declaration of Philip Pasquale;
(5) Declaration of Susan B. Stalzer
NOTE: DECLARATIONS ARE SET FORTH BELOW
in support of this motion, Strike 3 Holdings, LLC (“Plaintiff”) respectfully moves for entry of an order granting it leave to serve a third party subpoena on Comcast Cable, prior to a Rule 26(f) conference (the “Motion”).
A proposed order is attached for the Court's convenience.
Rule 26(f) – Plaintiff memorandum of legal points and authorities in support of early discovery
UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA STRIKE 3 HOLDINGS, LLC, Plaintiff,
TABLE OF CONTENTS I. INTRODUCTION…………………………………………………………………
1 II. FACTS………………………………………………………………………………………………………………..
2 A. Plaintiff is a Victim of Rampant Copyright Infringement Perpetrated Through The Use of BitTorrent …………………………………………………………………………………………………….
2 B. Plaintiff Brings Its Litigation in Good Faith……………………………………………………………
3 III. ARGUMENT………………………………………………………………………………………………………
4 A. Legal Standard Governing Expedited Discovery Requests To Identify An Anonymous Defendant…………………………………………………………………………………………………………
4 B. There Is Good Cause for this Court to Grant Plaintiff's Motion for Leave to Serve Its Subpoena Because Defendant's Identity is Necessary to Effectuate Service…………………
5 C. This Court Has Personal Jurisdiction Over Doe Defendant ………………………………………
.6 D. Protective Order………………………………………………………………………………………………..
8 IV. CONCLUSION……………………………………………………………………………………………………
iii TABLE OF AUTHORITIES
AF Holdings LLC v. Cox Commc'ns Inc., 752 F.3d 990, 996 (D.C. Cir. 2014)……………………..
AF Holdings, LLC v. Does 1-1058, 752 F.3d 990, 996 (D.C. Cir. 2014)………………………………..
Arista Records LLC v. Does 1–19, 551 F.Supp.2d 1, 6 (D.D.C.2008)………………………………..
Arista Records, LLC v. Doe 3, 604 F.3d 110 (2d Cir. 2010) ………………………………………………
Axel Braun Prods. v. Does 1-2, 823, No. CV 11-56 EGS/JMF, 2012 WL 177856 (D.D.C. Jan. 19,
Call of the Wild Movie, LLC v. Does 1-1,062, 770 F. Supp. 2d 332, 352–53 (D.D.C. 2011)
Davis v. Kelly, 160 F.3d 917, 921 (2d Cir. 1998)……………………………………………………………….
Exquisite Multimedia, Inc. v. Does 1–336, No CV. 11–1976, 2012 WL 177885 (D.D.C. Jan. 19, 2012)………………
Malibu Media, LLC v. Doe, 2016 WL 4444799 (E.D.N.Y. Aug. 23, 2016)…………………………….
Malibu Media, LLC v. Doe, No. CV 13-1941 (EGS/JMF), 2014 WL 25195 (D.D.C. Jan. 2, 2014) ………………………………………………………………………
Malibu Media, LLC v. Doe, No. CV 15-986 (RDM), 2015 WL 5173890 (D.D.C. Sept. 2, 2015)…………………………….
Malibu Media, LLC v. Doe, No. CV 16-00639 (RC/AK), 2016 WL 1698263 (D.D.C. Apr. 27, 2016)…………………….
Malibu Media, LLC v. John Doe, 177 F. Supp. 3d 554, 556 (D.D.C. 2016) …………………..
Nu Image, Inc. v. Does 1-23,322, 799 F. Supp. 2d 34, 41 (D.D.C. 2011)……………………………
Patrick Collins, Inc. v. Does 1-72, No. CV 11-58 RMU/JMF, 2012 WL 177864 (D.D.C. Jan. 19, 2012)………………………………………………………………….
Stabilisierungsfonds Fur Wein v. Kaiser, 647 F.2d 200, 207 (D.C. Cir. 1981)……………………….
Strike 3 Holdings, LLC v. John Doe, No. CV 3:17-1680 CSH, 2017 WL 5001474 (D. Conn. Nov. 1, 2017)………………………………………………………………….
W. Coast Prods., Inc. v. Does 1-1,434, 280 F.R.D. 73, 74 (D.D.C. 2012)……………………………..
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION FOR LEAVE TO SERVE A THIRD PARTY SUBPOENA PRIOR TO A RULE 26(f) CONFERENCE
“Pursuant to Fed. R. Civ. P. 26(d)(1), Plaintiff hereby respectfully submits this Memorandum of Points and Authorities in support of its Motion for Leave to serve a third-party subpoena prior to a Rule 26(f) conference.
I. INTRODUCTION Plaintiff, Strike 3 Holdings, LLC (“Strike 3” or “Plaintiff”) is the owner of original, award winning motion pictures featured on its brand's subscription-based adult websites.1 Unfortunately, Strike 3's success has led users on the Internet to illegally infringe its works on a very large scale.
Indeed, Strike 3's motion pictures are among the most infringed content in the world. See Declaration of Greg Lansky, attached hereto as Exhibit “A.”2 Strike 3 hired an investigator, ., to monitor and detect the infringement of Strike 3's content.
IPP discovered that Defendant's IP address was illegally distributing several of Strike 3's motion pictures. Strike 3's independent forensic expert, Philip Pasquale reviewed the evidence captured by IPP and confirmed that Defendant's IP address was involved in an infringing transaction at the exact date and time reported by IPP. See generally Declaration of Philip Pasquale, Exhibit “C.”
Strike 3 only knows Defendant by his or her IP address. This IP address is assigned to Defendant by his or her Internet Service Provider (“ISP”), which is the only party with the information necessary to identify Defendant by correlating the IP address with John Doe's identity. As a result, Plaintiff now seeks leave to serve limited, immediate discovery on Defendant's ISP, Comcast Cable Communications, LLC See generally Declaration of Greg Lansky, attached hereto as Exhibit “A.” See also Dylan Love, The Most-Pirated Man in Porn Is Getting Angry,
INVERSE (May 24, 2017), https://www.inverse.com/article/31350-greg-lansky-tushy-blacked-vixen-interview. Case 1:18-cv-01425-RCL Document 3-5 Filed 08/28/18 Page 4 of 11 2 (Comcast Cable) so that Plaintiff may learn Defendant's identity, investigate Defendant's role in the infringement, and effectuate service.
Further impelling expediency, Defendant's ISP only maintains the internal logs of the requested information for a brief period of time.
Plaintiff seeks leave of Court to serve a Rule 45 subpoena on Defendant's ISP. This subpoena will only demand the true name and address of Defendant. Plaintiff will only use this information to prosecute the claims made in its Complaint. Without this information, Plaintiff cannot serve Defendant nor pursue this lawsuit and protect its copyrights.
A. Plaintiff is a Victim of Rampant Copyright Infringement Perpetrated Through The Use of BitTorrent Greg Lansky (“Mr. Lansky”) is a member of General Media Systems, LLC, (“GMS”) the parent company that owns Strike 3. See Exhibit “A” at ¶ 1. Strike 3 owns the intellectual property to the Blacked, Blacked Raw, Tushy, and Vixen adult brands, including the copyrights to each of the motion pictures distributed through the brands' sites and the trademarks to each of the brand names and logos. Id. at ¶ 3.
Strike 3 is owned entirely by Mr. Lansky's company, GMS, and has existed since 2015. Id. Mr. Lansky is the Chief Creative Officer of the Blacked, Blacked Raw, Tushy, and Vixen adult brands. Id. at ¶ 1. In 2006, Mr. Lansky moved to the United States from Paris to pursue his dream of creating art in an adult context. Id. at ¶ 4. He has always been passionate about photography and cinematography. Id. 3 See, e.g., Statement Of Jason Weinstein Deputy Assistant Attorney General Criminal Division Before The Committee On Judiciary Subcommittee On Crime, Terrorism, And Homeland Security United States House Of Representatives, (January 2011) at http://www.justice.gov/sites/default/files/testimonies/witnesses/attachments/01/25/11//01-25-11-crm-weinsteintestimony-re-data-retention-as-a-tool-for-investigating-internet-child-pornography-and-other-internet-crimes.pdf, stating: “Some [ISP] records are kept for weeks or months; others are stored very briefly before being purged.”
It was a difficult start – Mr. Lansky could barely speak English, and he had trouble making connections and finding employment. Id. at ¶ 5. Eventually, after tremendous hard work, Mr. Lansky was fortunate to be hired by some of the biggest adult brands in the world. Id. at ¶ 6. Through these experiences, Mr. Lansky was able to establish himself and become an expert in the field. Id. In 2013, Mr. Lansky decided to risk everything to create his own company and studio. Id. at ¶ 7. After a few years, his brands turned into a multi-million dollar a year business. Id. at ¶ 10. His philosophy is to pay artists and models an amount above that being paid by other companies, focusing on delivering superior quality adult films. Id. at ¶¶ 12–13.
Moreover, Strike 3's motion pictures are known for having the highest production budget of any in the industry. Id. at ¶ 15. Because of this, Strike 3's brand's websites have a subscriber base that is one of the highest of any adult sites in the world, with 20 million unique visitors to its websites per month, and these websites enjoy a loyal following. Id. at ¶ 10. Strike 3 is also currently the number one seller of adult DVDs in the United States. Id. at ¶ 17.
Finally, Strike 3's content is licensed throughout the world, including by most major cable networks. Id. at ¶ 18. This success has led to numerous awards being bestowed upon Strike 3, such as “adult site of the year,” “best marketing campaign – company image,” and “best cinematography.” Id. at ¶ 19. Mr. Lansky himself has also won “director of the year” three years in a row. Id.
Unfortunately, piracy is a major threat and causes tremendous damage to Strike 3. As Mr. Lansky succinctly puts it, Strike 3 “can compete in the industry, but we cannot compete when our content is stolen.” Id. at ¶ 22. To continue to provide value for members, exciting and inspiring projects for adult performers, and to continue to create top paying jobs and growth in the adult community, Strike 3 must protect its copyrights. Id. at ¶ 29.
B. Plaintiff Brings Its Litigation in Good Faith Strike 3 is mindful of the nature of the litigation and its goal is to not embarrass anyone or force anyone to settle unwillingly, especially anyone that is innocent. Id. at ¶ 28. Therefore, Strike 3 files only strong cases against extreme infringers. Id. at ¶ 29.
Indeed, each lawsuit is brought against infringers that not only engage in illegal downloading, but are also large scale unauthorized distributors of Strike 3's content. Id. All defendants within the Strike 3 litigation have distributed, at a minimum, at least 15% of Strike 3's entire copyrighted library. Id. Moreover, Strike 3 does not seek settlements unless initiated by defendant or defendant's counsel. Id. at ¶ 30. Furthermore, Strike 3 does not send demand letters nor make any attempt to contact a defendant prior to service of the Complaint. Id. Thus, Strike 3 is careful to only proceed to litigation with strong cases, when it has a good faith basis for doing so. Id. at ¶ 31. Strike 3 is a successful adult entertainment company that makes nearly all of its revenue from sales of subscriptions, DVDs, and licenses. Id. at ¶ 32.
This litigation, or any litigation instituted by Strike 3, is not a business model. Id. Instead, Strike 3's goal is to deter piracy and redirect the infringement back into legitimate sales. Id. Proceeds that Strike 3 receives from settlements go back into making the company whole, including investing in better pay for artists and performers, better quality productions, and hiring and providing benefits for employees. Id.
A. Legal Standard Governing Expedited Discovery Requests To Identify An Anonymous Defendant Cases such as this one are the paradigm for when leave to conduct pre-Rule 26(f) conference discovery should be allowed.
“Pursuant to Rule 26(f) of the Federal Rules of Civil Case Procedure, although
‘[a] party may not seek discovery from any source before the parties have conferred as required by Rule 26(f),' the party may do so ‘when authorized … by court order.'” Malibu Media, LLC v. Doe, No. CV 16-00639 (RC/AK), 2016 WL 1698263, at *1 (D.D.C. Apr. 27, 2016) (citing Fed. R. Civ. P. 26(d)(1)). The Court uses a “good cause standard”4 when determining “whether to authorize discovery prior to a Rule 26(f) conference.” Malibu Media, No. CV 15-986 (RDM), 2015 WL 5173890 at *1 (citation omitted).
“Good cause to take discovery prior to the Rule 26(f) conference exists where the discovery is necessary ‘before the suit can progress further.'” Id. (quoting Arista Records LLC v. Does 1–19, 551 F.Supp.2d 1, 6 (D.D.C. 2008) (quotation marks and brackets omitted)). Additionally, since Plaintiff's Motion for Leave “is in essence seeking jurisdictional discovery,” Plaintiff “must have at least a good faith belief that such discovery will enable it to show that the court has personal jurisdiction over the defendant.” Malibu Media, LLC v. John Doe, 177 F. Supp. 3d 554, 556 (D.D.C. 2016) (citing Exquisite Multimedia, Inc. v. Does 1– 336, No. 11–1976, 2012 WL 177885, at *1 (D.D.C. Jan. 19, 2012)). 5
B. There Is Good Cause for this Court to Grant Plaintiff's Motion for Leave to Serve Its Subpoena Because Defendant's Identity is Necessary to Effectuate Service Good cause exists here, because discovery is necessary for Plaintiff to proceed with its copyright infringement lawsuit. “Defendant must be identified before this suit can progress 4 While other jurisdiction have used a five-factor analysis to determine good cause, see Arista Records, LLC v. Doe 3, 604 F.3d 110 (2d Cir. 2010), this Court has rejected this test as “premature” at this stage and more appropriately suited for a motion to quash. See Malibu Media, LLC v. Doe, No. CV 15-986 (RDM), 2015 WL 5173890, at *2 n.1 (D.D.C. Sept. 2, 2015).
“For the purposes of this Memorandum Opinion—which merely allows Plaintiff to propound discovery requests earlier than usual—it is sufficient for Plaintiff to show that the litigation cannot proceed absent the requested discovery and that Plaintiff has a good faith belief this Court has personal jurisdiction over Defendant.” Id. 5 See e.g., W. Coast Prods., Inc. v. Does 1-1,434, 280 F.R.D. 73, 74 (D.D.C. 2012); accord Axel Braun Prods. v. Does 1-2, 823, No. CV 11-56 EGS/JMF, 2012 WL 177856, at *2 (D.D.C. Jan. 19, 2012); Patrick Collins, Inc. v. Does 1-72, No. CV 11-58 RMU/JMF, 2012 WL 177864, at *2 (D.D.C. Jan. 19, 2012). Case 1:18-cv-01425-RCL Document 3-5 Filed 08/28/18 Page 8 of 11 6 further.” Id. at 557 (citing Arista Records LLC v. Does 1–19, 551 F.Supp.2d 1, 6 (D.D.C.2008)).
“Defendant's ISP . . . is the only entity that can correlate the IP address to its subscriber and identify Defendant as the person assigned the IP address . . . during the time of the alleged infringement.” Strike 3 Holdings v. John Doe, No. CV 3:17-1680 (CSH), 2017 WL 5001474, at *4 (D. Conn. Nov. 1, 2017).
“Without this information from the ISPs, the plaintiffs cannot name and serve those whom they allege to have infringed upon their copyrights.” Call of the Wild Movie, LLC v. Does 1-1,062, 770 F. Supp. 2d 332, 352–53 (D.D.C. 2011).
“Indeed, it is questionable whether the Court could dismiss the case without allowing Plaintiff the opportunity for discovery of Defendant's identity.” Malibu Media, No. CV 15-986 (RDM), 2015 WL 5173890 at *1 (citing Davis v. Kelly, 160 F.3d 917, 921 (2d Cir. 1998) (noting “courts have rejected the dismissal of suits against unnamed defendants . . . until the plaintiff has had some opportunity for discovery to learn [the defendants'] identities”).
C. This Court Has Personal Jurisdiction Over Doe Defendant “In cases where the Plaintiff seeks the defendants' identifying information through an ISP, the Plaintiff must request discovery in the judicial districts in which such defendants are located.” Malibu Media, LLC v. Doe, No. CV 16-00639 (RC/AK), 2016 WL 1698263, at *2 (D.D.C. Apr. 27, 2016).
Plaintiff used Maxmind's geolocation technology to trace Defendant's IP address to a physical location within this district. See Complaint at ¶¶ 8–9. The Court of Appeals for the District of Columbia has held that this technique is “sufficiently accurate” to establish situs. AF Holdings, LLC v. Does 1-1058, 752 F.3d 990, 996 (D.C. Cir. 2014) (finding geolocaiton technologies “enable anyone to estimate the location of Internet users based on their IP addresses”); see also Nu Image, Inc. v. Does 1-23,322, 799 F. Supp. 2d 34, 41 (D.D.C. 2011) (“[W]hile these geolocation services are not 100% accurate, these services can place a user no farther away than a city that borders the user's actual location . . . .”).
Having established Defendant's physical presence, the only remaining issue is under what mechanism this Court may properly exercise its jurisdiction.
“District of Columbia law provides for the exercise of personal jurisdiction over a person domiciled in the District of Columbia as to ‘any claim for relief.'” Malibu Media, 177 F. Supp. 3d at 556 (quoting D.C. Code § 13–422 (2001)). The District's long-arm-statute states, in relevant part: (a) A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person's—(3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia; Id. (quoting D.C. Code § 13–423 (2001)).
“It is well settled in this jurisdiction that a claim for copyright infringement sounds in tort.” W. Coast Prods., Inc. v. Does 1-1,434, 280 F.R.D. 73, 74 n.2 (D.D.C. 2012) (citing Nu Image, 799 F.Supp.2d at 38 n.3) (citing Stabilisierungsfonds Fur Wein v. Kaiser, 647 F.2d 200, 207 (D.C. Cir. 1981)).
“Personal jurisdiction might properly be exercised over Defendant John Doe if he or she is a resident of the District of Columbia or at least downloaded the copyrighted work in the District.” Malibu Media, 177 F. Supp. 3d at 557 (citing AF Holdings LLC v. Cox Commc'ns Inc., 752 F.3d 990, 996 (D.C. Cir. 2014)).
“Thus, unless the infringer is domiciled in the District of Columbia, the question presented is where the infringement occurred and whether it occurred in the District of Columbia.” Id. The Complaint alleges both: based on its use of geolocation technology, Plaintiff has a good faith basis to believe that Doe Defendant is a resident of the District of Columbia, or in the alternative, if this not the case, that at a minimum, a substantial portion of Defendant's infringement (“tortious injury”) took place within the District. See Complaint at ¶ 9.
This Court has found analogous pleadings sufficient in the past. See generally Case 1:18-cv-01425-RCL Document 3-5 Filed 08/28/18 Page 10 of 11 8 Malibu Media, 177 F. Supp. 3d. 6 As a result, Plaintiff has established good cause for this Court to take leave and allow early discovery into the identity of Doe Defendant.
D. Protective Order In some involving adult content, courts have found it appropriate to issue a protective order establishing procedural safeguards such as allowing a defendant to proceed anonymously. See e.g., Malibu Media, LLC v. Doe, 2016 WL 4444799, at *2 (E.D.N.Y. Aug. 23, 2016)
(“[T]he Court issued a Protective Order governing the manner in which such information would be disclosed.”) Strike 3 respectfully encourages the Court to establish such procedures here, should the Court find it appropriate.
IV. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests this Court grant leave to Plaintiff to issue a Rule 45 subpoena to Defendant's ISP. Dated: 08/28/2018
NOTE: Use of italics, bolding and underline are my own and not part of the pleading. The items underlined I take issue with based on my Torrent Defense experience.
Declarations Submitted in Support of the Motion
Here are the Declarations I found online in support of Plaintiff's motion to leave to seek early discovery.
DECLARATION OF SUSAN B. STALZER IN SUPPORT OF PLAINTIFF'S MOTION FOR LEAVE TO TAKE DISCOVERY PRIOR TO A RULE 26(0 CONFERENCE
I, Susan B. Stalzer, do hereby state and declare as follows:
1. My name is Susan B. Stalzer. I am over the age of 18 and am otherwise competent to make this declaration.
2. This declaration is based on my personal knowledge and, if called upon to do so, I will testify that the facts stated herein are true and accurate.
3. I work for Strike 3 Holdings, LLC (“Strike 3”) and review the content of their motion pictures.
4. I hold a Bachelor's degree and Master's degree m English from Oakland University.
5. I have a long history of working in the fine arts, with an emphasis on writing, including having served as an adjunct professor of composition and literature.
6. I am familiar with Strike 3 ‘s plight with online piracy and its determination to protect its copyrights.
7. I was tasked by Strike 3 with verifying that each infringing file identified as a motion picture owned by Strike 3 on torrent websites was in fact, either identical, strikingly similar or substantially similar to a motion picture in which Strike 3 owns a copyright.
8. IPP provided me with the infringing motion picture file for each of the file hashes listed on Exhibit A to Strike 3's Complaint.
9. I viewed each of the unauthorized motion pictures corresponding to the file hashes side by side with Strike 3's motion pictures, as published on the Blacked, Blacked Raw, Tushy and/or Vixen websites and enumerated on Exhibit A by their United States Copyright Office identification numbers.
10. Each digital media file, as identified by the file hash value, is a copy of Strike 3's corresponding motion picture and is identical, strikingly similar or substantially similar to the original work identified by their United States Copyright Office identification numbers on Exhibit A to the Complaint.
11. Additionally, I used American Registry for Internet Numbers (“ARIN”) to confirm that the ISP did own Defendant' s 1P address at the time of the infringements, and hence has the relevant information to identify Doe Defendant.
DECLARATION PURSUANT TO 28 U.S.C. § 1746, I hereby declare under penalty of perjury under the laws of the United States…
NOTE: On all Declarations on this blog any links, bold, underline or italics are provided by me and not part of the motion.
I, Philip Pasquale, do hereby state and declare as follows:
1. My name is Philip Pasquale. I am over the age of 18 and I am otherwise competent to make this declaration.
2. This declaration is based on my personal knowledge and, if called upon to do so, I will testify that the facts stated herein are true and accurate.
3. I am a technology advisor with 7 River Systems, LLC a Maryland based cyber security firm specializing in network security, data breaches, and the protection of secured information transmitted across networks.
4. I have several years of IT experience focused on networking, programming, applications and operating systems.
5. I specialize in maintaining and repairing network servers for major US banks and financial institutions. This includes maintaining and repairing network hardware for over 100,000 servers.
6. I was retained by Strike 3 Holdings, LLC (“Strike 3”) to individually analyze and retain forensic evidence captured by IPP International U.G. (“IPP”).
7. I received a PCAP from IPP containing information relating to the transaction occurring on 05/21/2017 13:48:32 UTC involving IP address 22.214.171.124.
8. I used a program called Wireshark to view the contents of the PCAP.
9. I was able to confirm that IPP recorded the transaction with 126.96.36.199 at 05/21/2017 13:48:32 UTC.
10. Based on my experience in similar cases, Defendant's ISP Comcast Cable is the only entity that can correlate the IP address to its subscriber and identify Defendant as the person assigned the IP address 188.8.131.52 during the time of the alleged infringement. Indeed, a subpoena to an ISP is consistently used by civil plaintiffs and law enforcement to identify a subscriber of an IP address. DECLARATION PURSUANT TO 28 U.S.C. 1746.
DECLARATION OF TOBIAS FIESER IN SUPPORT OF PLAINTIFF'S MOTION FOR LEAVE TO TAKE DISCOVERY PRIOR TO A RULE 26ffi CONFERENCE
I, Tobias Fieser, do hereby state and declare as follows:
1. My name is Tobias Fieser. I am over the age of 18 and am otherwise competent to make this declaration.
2. This declaration is based on my personal knowledge and, if called upon to do so, I will testify that the facts stated herein are true and accurate.
3. I am employed by IPP International UG (“IPP”), a German company, in its litigation support department.
4. IPP provides forensic investigation services to copyright owners including an ability to track, monitor, and detect copyright infringement in an online environment. Strike 3 Holdings, LLC (“St Defendant's IP Address of 184.108.40.206 was documented distributing to IPP's servers multiple pieces of Strike 3 ‘s copyrighted movies listed on Exhibit A to Strike 3 ‘s Complaint.
8. Each piece was recorded in a PCAP, which stands for ”packet capture” and is a forensically sound interface for recording network traffic. The time recorded is quoted in Universal Time which correlates to the assignment logs kept by United States Internet Service Providers (ISPs) tracking which IP Address is assigned to which customer at a given point in time. The infringement appears consistent and on-going.
9. IPP's software additionally analyzed each BitTorrent “piece” distributed by Defendant's IP Address. It verified that reassembling the pieces using a specialized BitTorrent client results in a fully playable digital movie.
10. A digital file can be identified by what is called a “Cryptographic Hash Value.” This concept was developed by the United States National Security Agency. IPP's software determined that the files being distributed by Defendant's IP Address have a unique identifier of the Cryptographic Hash outlined on Exhibit A.
11. IPP's software is programmed to only allow it to download files from the BitTorrent Network. It is unable to distribute content. At no point did IPP distribute any part of Strike 3 ‘s copyrighted movies at any time.
12. IPP additionally confirmed through its ancillary worldwide BitTorrent surveillance program that IP address 220.127.116.11 is associated with significant long term BitTorrent use. DECLARATION PURSUANT TO 28 U.S.C. § 1746, I hereby declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
i EXHIBIT A UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA STRIKE 3 HOLDINGS, LLC
DECLARATION OF GREG LANSKY IN SUPPORT OF PLAINTIFF'S MOTION FOR LEAVE TO SERVE A THIRD-PARTY SUBPOENA PRIOR TO 1 A RULE 26(F) CONFERENCE
I, Greg Lansky, do hereby state and declare as follows:
1. I am a member of General Media Systems, LLC, the parent company that owns Strike 3 Holdings, LLC (“Strike 3”).
I am the Chief Creative Officer of the Blacked, Blacked Raw, Tushy, and Vixen adult brands.
2. 1 I have personal knowledge of all of the matters contained in this declaration and, if called and sworn as a witness, I can and competently will testify to all matters contained I herein. This declaration is made in support of Plaintiff's Motion for Leave to Serve a ThirdParty Subpoena Prior to a Rule 26(t) Conference.
3. Strike 3 owns the intellectual property to the Blacked, Blacked Raw, Tushy, and Vixen adult brands, including the copyrights to each of the motion pictures distributed through Blacked, Blatked Raw, Tushy and Vixen and the trademarks to each of the brand names and logos. Strike 3 is owned entirely by our company General Media Systems, LLC and has existed since 2015.
4. , I moved to the United States in 2006 from Paris, France to pursue my dream of creating art in an adult context. I have always been passionate about photography and cinematography.
5. It was a difficult start- I could barely speak English, and I had trouble making connections and finding employment. I struggled for several years to make a name for myself as a reliable photographer and director.
6. Eventually, after tremendous hard work, I was fortunate to be hired by some of the biggest ad brands in the world. Through these experiences, I was able to establish myself and become an expert in the field.
7. In 2013, I decided to risk everything to create my own company and studio. As a I director, I felt the industry and I were not offering the best quality and experience possible. I felt I was not offerjng truly inspiring projects for performers to express their art.
8. At the time, the adult market was demoralized and it appeared that a high-quality, well produced, subscription based website would never succeed.
9. I can still remember when our company was just three people in my small home office.
10. We kept growing and after a few years, our brands turned into a multi-million dollar a year business. We now have 20 million unique visitors to our websites per month and a loyal following.
11. Our company's philosophies are important.
12. We always strive to pay artists and models an amount above that being paid by other companies. Indeed, we are known for paying our performers the highest rates ever I recorded. Empowering the artists and especially the women we work with is at the core of our company.
13. We focus on delivering to our subscribers and fans superior quality adult films and a wonderful customer experience. People thought we were crazy to think that people wanted to pay for extensive quality adult films and we were told that we were destined to fail. Now, we I have a substantial and loyal customer base.
14. We provide jobs for nearly 75 people worldwide. We provide good benefits including health care coverage and have an extremely positive company culture. Our recent new employees include production managers, video editors, marketing specialists, accountants, and i HR representatives.
15. Our movies are known for having the highest production budget of any in the industry. We invest in and utilize state of the art cinematic equipment. We film using Hollywood industry standards. And, as our subscriber base grows, we always seek to find ways to invest in valµe for our customers.
16. Because of this, we have a subscriber base that is one of the largest of any adult I sites in the world.
17. We are also currently the number one seller of adult DVDs in the United States.
18. Our content is licensed throughout the world, including by most major cable networks.
19. Our success has not gone unnoticed. Indeed, we are very proud to state that our unique cinematic films have won many awards. It's humbling. Some of them include:
o Best New Studio (XBIZ, 2017)
o Studio of the Year (XBIZ, 2018)
o Best Cinematography (A VN, 2016)
o Director of the Year (A VN, 2016-2017; XBIZ, 2017-2018)
o Best Director – (XRCO, 2016-2017)
o Best Membership Website (A VN, 2016-2017)
o Adult Site of the Year – (XBIZ, 2015-2017)
o Best marketing campaign- company image (A VN, 2016-2017)
o Marketing Campaign of the Year (XBIZ, 2018)
o , Greg Lansky-Lifetime Achievement Award (Nightmoves)
o Vignette Series of the Year (XBIZ, 2018)
20. We also are routinely featured in the mainstream media. Recently, Forbes, The Daily Beast, and CBC Radio3 have all done substantial profiles on us. We are also currently working on a project with BuzzFeed.
21. We are proud of our impact on the industry. We have raised the bar in the industry – leading more adult studios to invest in better content, higher pay for performers, and to treat each performer like an artist. That is a testament to the entire team, the company we have built and the movies we create.
“How One Pornographer is Trying to Elevate Porn to Art,” Forbes July 20, 2017 https://www .forbeS.com/sites/susannahbreslin/2017 /07 /20/pomographer-greg-lansky-interview/#230 I d3ae6593
“Meet the Man Making Porn Great Again,” The Daily Beast, February 18, 2017 http://www.thedailybeast.com/meet-the-man-making-porn-great-again 3 “Pom-o-nomics:
How one director is making a fortune by defying conventional wisdom,” CBC Radio, February 24, 2017 http://www.cbc.ca/radio/day6/episode-326-sanctuary-cities-la-la-land-vs-jazz-hollywood-in-china-pom-onomics-and-more-I·. 3994160/pom-o-nomics-how-one-director-is-making-a-fortune-by-defying-conventionalwisdom
Unfortunately, piracy is a major threat to our company. We can compete in the industry, but we cannot compete when our content is stolen.
23. We have discovered that when we put videos online for paid members to view, it takes as little as four minutes to be downloaded on to torrent websites. We have attempted to identify the initial seeder but have found it impossible with the large volume of our subscriber base.
24. We put a tremendous amount of time, effort and creative energy into producing I and distributing valuable content for our paid customers. It crushes us to see it being made available to anyone for free in just minutes.
25. We are undeniably the most pirated adult content in the world. Our movies are I typically among the most pirated television shows and movies on major torrent websites.
26. We send on average 50,000 Digital Millennium Copyright Act notices a month but it does virtµally nothing to stop the rampant copyright infringement.
27. The only effective way to stop the piracy of our movies on BitTorrent networks is to file lawsuits like this one.
28. We are mindful of the nature of the litigation, and our goal is not to embarrass anyone, or force anyone to settle unwillingly, especially anyone that is innocent. We are proud of the films we make. We do not want anyone to be humiliated by them.
29. Because of this, my company and our legal team strive to only file strong cases against extreme infringers. Each lawsuit seeks to stop only those infringers who engage in ….. large scale unauthorized distribution of our content. All defendants pursued in Strike 3 litigation have distributed, at a minimum, at least 15% of Strike I J's entire copyrighted library.
30. We also do not seek settlements unless initiated by the defendant or his counsel.
We do not send demand letters nor make any attempt to contact a defendant prior to service.
31. We are careful not to proceed with a case against a defendant unless we feel we I have a strong case, and a good faith basis for dog so. We will not pursue defendants that provide substantiated exculpatory evidence. Nor will we pursue defendants that have proven hardships. Our clear objective is to be mindful and reasonable with each case.
32. We are a respected entertainment company that makes nearly all of its revenue from sales of subscriptions, DVDs, and licenses. This litigation is not a business model. Our goal is to deter piracy and redirect the infringement back into legitimate sales. Proceeds we receive from settlements go back into making our company whole, including investing in better pay for artists and performers, better quality productions, and creating jobs.
33. We believe a consumer's choice of what content to enjoy, whether it be adult entertainment or otherwise, is a personal one to that consumer and therefore it is our policy to keep confidential the identity of not only our subscribers, but even those we are pursuing for copyright infringement. We typically only reveal a defendant's identity if the defendant does not request confidentiality or if the Court in a particular action does not allow us to proceed with the defendant remaining anonymous.
34. Our copyrights are the foundation of our livelihood. Our copyrights enable us to open our office doors each day, pay our employees, make a difference in our community and create motion pictures that raise the industry standard . We have to protect them . DECLARATION PURSUANT TO 28 U.S.C. § 1746.
ITEMS UNDERLINED ARE ITEMS WE TAKE ISSUE WITH BASED ON OUR EXPERIENCE HANDLING MANY TORRENT CASES ACROSS THE UNITED STATES.
More Torrent Lawsuit [Video] Resources
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Contact a Torrent Defense Lawyer
DO NOT contact a Torrent Lawyer before FIRST discussing the case with a copyright infringement law firm. We offer a FREE no cost initial consultation designed to explain the process and provide a general legal overview of the situation without high pressure sales tactics. We are a leading copyright firm in the United States and we have substantial federal court experience. In this niche area of la there is no substitute for experience, and we accept referrals from other attorneys who do not have knowledge in this area of technology law. Call us at (877) 276-5084. We offer low flat rate fees for many cases.